In 1789 the US Constitution was
adopted. Within Article III of the Constitution was the jurisdiction of the
federal courts. Among the types of cases the federal courts could hear were
cases "between a State and citizens of another State" and "between a State, or
the citizens thereof, and foreign States, citizens or subjects." In 1793 the US
Supreme Court ruled 4-1 (Justice Iredell dissenting) that these two clauses in
Article III abrogated the sovereign immunity the States were told they would
retain after ratifying the Constitution (see Chisolm v. Georgia 2 US
451). Two Justices (Justice Wilson and Chief Justice Jay) went so far as to
suggest that the States had completely waived their sovereign immunity when they
ratified the Constitution.
The States were outraged over this decision because they had been told multiple
times in The Federalist Papers and elsewhere that they would be immune from
prosecution in the federal courts. Without this immunity, they could be sued
over their Revolutionary War debts and this would likely result in multiple
States going bankrupt. With this in mind, the Congress passed and the States
ratified the 11th Amendment which states "The Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States, by Citizens of another State, or
by Citizens or Subjects of any Foreign State." This Amendment was meant to
protect the States from being controlled by the federal courts and from having
to pay taxpayers' dollars because of federal court judgments. In 1890 the
Supreme Court ruled that the 11th Amendment was meant to codify each State's
sovereign immunity and that the Amendment's reference to lawsuits by an other
State's citizens or a foreigner's lawsuit was because those were the two types
of lawsuits at issue in the Chisolm decision.
Now that I have explained the history of the 11th Amendment, let me explain how
the Supreme Court has, to a large extent, gutted that Amendment. Now common
sense would dictate that if a State is immune from prosecution in the federal
courts, so are the officials that make up this State. Of course were talking
about the federal courts, where anything but common sense reigns supreme. In
1908, in Ex Parte Young 209 US 123, the Supreme Court declared that since
a State could not order or allow any of its officials to violate the
Constitution, if an official did violate the Constitution he could no longer
represent the State and so could be sued in federal court. What this allowed
the federal courts to do is tell a State's official to remedy what the court
considered a violation of the Constitution.
This undermined the relationship between the federal government and the States,
since instead working together to determine what a particular federal law meant
the federal government's courts could simply order the States to do something.
It should also be noted that Ex Parte Young was decided a mere three
years after the Supreme Court's decision in Lochner v. New York which
said that neither the federal government or any State could interfere with any
contract (i.e., "liberty of contract"). Lochner was overruled in 1937.
Since the Congress did not agree with Lochner it would not pass any law
to enforce it and the 11th Amendment would seem to protect the States from
lawsuits to enforce Lochner. This would appear to make Lochner
unenforceable. So the Supreme Court's novel decision in Ex Parte Young
allowed the Court to enforce a decision that otherwise would have been
meaningless.
To this day the federal courts, on a regular basis, tell the States (through
their officials) to do this or that, while at the same time claiming the lawsuit
is not being brought against any State. This is double talk worthy of a
politician. I'm suing a member of a State government, but because I didn't
mention a State by name I'm not officially suing a State and so the 11th
Amendment doesn't apply. This would be like me punching you in the nose and
saying that I didn't hit you because I didn't hit your entire body. Ex Parte
Young is nothing short of a judicial power grab. It is the same as the
Chisolm decision. That decision was overruled by the 11th Amendment, so the
Supreme Court used double talk to get around the Amendment (a State is made up
of officials, but when you sue one of these officials you are not suing a
State).
The double talk continues, because in most cases only a government official can
commit the alleged violation. For example, in Ex Parte Young Minnesota
Attorney General Edward T. Young was accused of violating a company's economic rights under
the 14th Amendment. The 14th Amendment can only be violated by a State, so that
if Edward T. Young is not representing the State then there is no violation of
the Constitution. The Supreme Court's solution to this problem was to hold that
its ruling in Ex Parte Young only applied to a court's jurisdiction.
This meant that Mr. Young, for the purpose of this lawsuit, was simultaneously a
member of the State government and was not a member of the State government.
This is double talk on top of double talk. Of course whether a State official
is considered a member of the State government depends on what will give the courts
more power over the States. For the purposes of the courts hearing cases
against the States, the official isn't a member of the State government, but
suddenly for the purposes of the alleged violation he magically is a member of
the State government again.
Today no federal judge or Supreme Court Justice claims that Ex Parte Young
is based on fact (in 1982 Justice Stevens said Ex Parte Young was nothing
but a "fiction" (i.e., a lie), but they still use it so that they can tell the
States what to do. The Supreme Court, since 1996, has vigorously enforced the
11th Amendment, but still refuses to overrule Ex Parte Young. Why? If
the States are immune from prosecution in the federal courts how can any federal
judge, with a straight face, believe Ex Parte Young is consistent with
the Constitution.
The Supreme Court should overrule Ex Parte Young, but since that isn't
likely the States should declare Ex Parte Young invalid. What will the
federal government do if a State disregards a federal court ruling? If
necessary the States should call for a Constitutional Convention (see Article V
of the Constitution), so that this and other undermining of States' Rights can
be dealt with. As long as Ex Parte Young is around any federal court
judge can effectively make himself governor of any State at anytime.
